TMI Blog2017 (10) TMI 816X X X X Extracts X X X X X X X X Extracts X X X X ..... sing carriers - Held that: - As against such detailed findings, in my view there is no effective contradiction of the same by this appellant - impugned order upheld. Shamsuddin K.A - confiscation - penalty - the appellant has tried to change the adjudicating authorities findings by stating that there was no verification of accounts maintained in appellant s shop before seizing the currency; ingredients required for confiscation of sale proceeds of smuggled goods - Held that: - there are no evidences to show that the Indian currency of ₹ 25,77,500/- is the sale proceeds of smuggled gold, in view of which, I hold that the absolute confiscation or confiscation of the Indian currency of ₹ 25,77,500/- is incorrect and not in accordance with law and needs to be set aside - In the absence of any evidence to indicate that the Indian currency of ₹ 25,77,500/- was sale proceeds of the smuggled gold, I find that the penalty imposed on this appellant is unwarranted and liable to be set aside and I do so. Shri Ummer Abdulla - penalty u/s 112(a) and (b) of the CA - Held that: - I do not find any reason to interfere in such detailed findings recorded by the adjudicating au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ummer Abdulla C/20770/2016 - - - 8,00,000/- Abdul Basheer C/20782/2016 - - - 8,00,000/- Althaf K.M C/20802/2016 8,00,000/- 8,00,000/- - - Manoj P C/20803/2016 8,00,000/- - - - Shamsuddin K.A. C/20804/2016 - - 8,00,000/- Fathimath Rubeena C/20900/2016 - - - - 3. None appeared on behalf of the appellant despite notice. On perusal of records, it transpires that the appeals have been coming up for disposal from August 2016 onwards. Since the issue involved lies in a narrow compass, the appeals are disposed of considering the grounds of appeal taken in the respective appellants and even in the absence of any representation. 4. Heard the learned DR and perused the records. 5. On perusal of records, it transpires that all these appellants were found to be involved in smuggling of 24 numbers gold biscuits weighin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f penalty on this appellant. 7.1. As regards the grounds of appeal taken by appellant Shri Abdul Basheer, I find that in the entire appeal memoranda, the grounds of appeal has not controverted the factual findings of the adjudicating authority in the case in hand, but is more on technicality, that the adjudicating authority has relied upon statements that the earlier attempts made by this appellant for smuggling of the gold; that gold was not removed from the Customs area or from the airport and there is no establishment that the appellant was the offender and who was in the act of smuggling or as a abettor and absolutely confiscated gold which was not seized from the appellant. I find that the adjudicating authority recorded a finding on the role attributed to Shri Abdul Basheer in paragraph No. 84 and relied upon the independent statements of various persons to hold that this appellant had recruited individual into aiding in the smuggling of the gold and was waiting outside the airport to collect the smuggled goods. He has also recorded a finding that this appellant was helping to organize the smuggling of gold biscuits through Calicut International Airport using carriers. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the Indian currency of ₹ 25,77,500/- (Rupees Twenty Five Lakhs Seventy Seven Thousand and Five Hundred only) is incorrect and not in accordance with law and needs to be set aside and I do so. The confiscation of Indian currency of ₹ 25,77,500/- (Rupees Twenty Five Lakhs Seventy Seven Thousand and Five Hundred only) is set aside and the appeal to that extent is allowed. 8.1. As regards the penalty imposed on this appellant, I find that the adjudicating authority has imposed the penalty under the provisions of Section 112(b) of the Customs Act 1962 which in the facts and circumstances of this case is not applicable as can be seen from the discussion on merits on seizure of the Indian currency as recorded hereinabove. Further the appellant was correct in putting forth the arguments that provisions of Section 112(b) will not apply in the case in hand as the said provisions can be invoked only if the goods which are imported are liable to be confiscated under Section 111 of the Customs Act 1962. In the absence of any evidence to indicate that the Indian currency of ₹ 25,77,500/- (Rupees Twenty Five Lakhs Seventy Seven Thousand and Five Hundred only) was sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he photograph of one Shri Manoj but nothing is recorded in the mahazar; no evidence is brought on record linked appellant with any of the so called gold smuggling in fact members; appellant has not done any act or omission which was rendered the goods liable for confiscation under Customs Act. Hence penalty imposed on the appellant under Section 112(a) is incorrect as also under Section 114(AA) of the Customs Act, 1962. 10.1. On perusal of the findings recorded by the adjudicating authority in paragraph No. 82.2 I find that it records that the appellant had brought the gold biscuits with him from Dubai and handed over to one person inside the Calicut Airport to be transported out of the airport. It is also recorded that the appellant had not made any declaration about bringing gold to the Customs authorities when he arrived at Calicut Airport from Dubai and appellant himself has admitted in the statement recorded that the gold which he had handed over would have been transported out of the Airport without Customs clearance. In my view, the finding recorded by the adjudicating authority is correct and does not require any interference. 11. As regards the appeal filed by Shri M ..... X X X X Extracts X X X X X X X X Extracts X X X X
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